ORDER OF THE COURT (Eighth Chamber)

31 May 2018 ([\*](#Footnote*))

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Revocation proceedings — Word mark FEMIBION — Partial rejection of the application for revocation)

In Case C‐62/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 January 2018,

**Merck KGaA,** established in Darmstadt (Germany), represented by M. Best, U. Pfleghar and S. Schäffner, Rechtsanwälte, and by M. Giannakoulis, advocate,

appellant,

the other parties to the proceedings being:

**Endoceutics, Inc.,** established in Quebec (Canada), represented by M. Wahlin, advokat,

applicant at first instance,

**European Union Intellectual Property Office (EUIPO),**

defendant at first instance,

THE COURT (Eighth Chamber),

composed of J. Malenovský, President of the Chamber, D. Šváby (Rapporteur) and M. Vilaras, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

**Order**

1        By its appeal, Merck KGaA seeks to have set aside the judgment of the General Court of the European Union of 17 November 2017, *Endoceutics* v *EUIPO* — *Merck (FEMIBION)* (T‐802/16, not published, ‘the judgment under appeal’, EU:T:2017:818), by which the General Court annulled the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 July 2016 (Case R 1608/2015-1) concerning revocation proceedings between Endoceutics, Inc., and Merck, in so far as that decision maintained registration of the trade mark FEMIBION held by Merck (‘the mark at issue’) for ‘pharmaceutical preparations for immune system support, for menopause, for menstruation, for the treatment and management of pregnancy, for the prevention, treatment and management of stress, for the prevention, treatment and management of stress caused by ill-balanced or deficient nutrition’.

2        The single ground relied on by the appellant in support of its appeal alleges infringement of Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (now Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

**The appeal**

3        Pursuant to Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

4        That provision must be applied in the present case.

5        On 19 April 2018, the Advocate General took the following position:

‘1.       For the reasons stated hereinafter, I propose that the Court should, in accordance with Article 181 of the Rules of Procedure, dismiss the appeal in this case as being manifestly inadmissible.

2.      It should be recalled that, according to settled case-law, it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and assess the relevant facts and evidence. The appraisal of those facts and evidence does not, therefore, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 5 October 2017, *Wolf Oil* v *EUIPO*, C‐437/16 P, not published, EU:C:2017:737, paragraph 24 and the case-law cited).

3.      Furthermore, also according to those provisions and to Article 168(1)(d) and Article 169(2) of the Rules of Procedure, an appeal must identify precisely the contested points in the grounds of the judgment that it is sought to have set aside and must indicate precisely the legal arguments that specifically support that request, failing which the appeal or the relevant ground of appeal will be declared inadmissible (judgment of 8 June 2017, *Dextro Energy* v *Commission*, C‐296/16 P, not published, EU:C:2017:437, paragraph 60 and the case-law cited).

4.      In the present case, the appellant claims, in essence, that the General Court, in the same way as the Cancellation Division, made an incorrect assessment of the evidence that was provided to it for the purpose of demonstrating genuine use of the mark at issue, and that the General Court found that the goods concerned, to which that evidence related, could therefore not be classified as pharmaceutical preparations. The appellant submits that the Board of Appeal had correctly found that it followed from that evidence that the mark at issue had been put to genuine use for the goods concerned, which were under the subcategory that the appellant had defined, that is to say, the subcategory including pharmaceutical preparations.

5.      It must, however, be held that, in paragraphs 58 to 61 of the appeal, the appellant, which has not alleged any distortion of the facts, by its arguments merely challenges the factual assessment carried out by the General Court without invoking any error of law that might invalidate the reasoning followed by the Cancellation Division and subsequently confirmed by the General Court in paragraphs 29 to 40 of the judgment under appeal.

6.      Thus, first, the appellant has not identified in its appeal the precise paragraphs of the judgment under appeal that may be vitiated by an error of law but has merely repeated, without elaborating, the reasoning of the Board of Appeal and, second, even if the evidence provided by the appellant had been relevant for the purpose of demonstrating genuine use of the mark at issue for the relevant subcategory of the goods concerned, the General Court has exclusive jurisdiction to assess that evidence and therefore the Court of Justice cannot review that assessment.

7.      Consequently, by reason of the case-law referred to in points 2 and 3 of the present Position, the appeal must be dismissed in its entirety as being manifestly inadmissible and the appellant must be ordered to pay the costs.’

6        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly inadmissible.

**Costs**

7        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. Since the present order has been adopted before the appeal was served on the other parties and, consequently, before those other parties could have incurred costs, the appellant must bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      **The appeal is dismissed as being manifestly inadmissible.**

2.      **Merck KGaA shall bear its own costs.**

Luxembourg, 31 May 2018.

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| --- | --- | --- |
| A. Calot Escobar | | J. Malenovský |

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| --- | --- | --- |
| Registrar | | President of the Eighth Chamber |

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[\*](#Footref*)      Language of the case: English.